Citation Nr: 0728541
Decision Date: 09/12/07 Archive Date: 09/25/07
DOCKET NO. 05-10 698 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Whether there is new and material evidence to reopen a claim
for service connection for a psychiatric condition, diagnosed
as a depressive disorder.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
S. Finn, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1972 to
January 1974. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a September 2003
rating decision from the New Orleans, Louisiana Regional
Office of the Department of Veteran Affairs (VA).
In January 2007, the veteran testified at a hearing conducted
before the undersigned Veterans Law Judge at the local
regional office. A transcript of the hearing is associated
with the claims file.
The veteran's reopened claim is REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC. VA will
notify the veteran if further action is required.
Further, the veteran raised in his substantive appeal that he
would like to appeal "all issues" raised in his original
claim, including his back condition and ear condition. The
Board does not have jurisdiction to address these issues as
the September 2003 rating decision only pertains to service
connection for depressive disorder. Therefore, these issues
are referred back to the RO for appropriate action.
REMAND
For a claim to reopen a previously denied claim for service
connection, the VCAA requires that VA provide a notice letter
that describes the basis of the previous denial, as well as
the evidence necessary to substantiate the element(s) of
service connection found to be unsubstantiated in the
previous denial. The failure to provide this notice prior to
the adjudication of a veteran's claim generally constitutes
prejudicial error by VA. The veteran must also be notified
of what constitutes both "new" and "material" evidence to
reopen the previously denied claim. See Kent v. Nicholson,
20 Vet. App. 1 (2006).
The veteran has not received a notice letter explaining that
new and material evidence must be submitted to reopen his
previously denied claim of service connection for depressive
disorder, nor one describing the basis of the previous denial
of the veteran's claim or informing him of what constitutes
"new" and "material" evidence (i.e. medical evidence).
Therefore, the instant case must be remanded for proper
notice under VCAA.
Accordingly, the case is REMANDED for the following action:
1. Please send the veteran a VCAA notice
letter under 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b), that includes an
explanation as to what constitutes new
and material evidence to reopen his
previously denied claim of entitlement to
service connection for depressive
disorder. Such notice letter should
describe the basis of the previous denial
of the veteran's service connection
claim, as well as the evidence necessary
to substantiate the element(s) of service
connection found to be unsubstantiated in
the previous denial. The notice letter
should also include evidence needed to
establish a disability rating and
effective date for the claim on appeal,
as outlined by the Court in
Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
2. The RO should contact the Social
Security Administration (SSA) and obtain
copies of records pertinent to the
veteran's claim for SSA benefits and a
copy of the determination awarding
benefits.
3. Thereafter, the RO should
readjudicate the veteran's claim. If the
benefit sought on appeal remains denied,
the veteran should be provided a
supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An
appropriate period of time should be
allowed for a response.
Then, if indicated, this case should be returned to the Board
for the purpose of appellate disposition.
The veteran has the right to submit additional evidence and
argument on this matter. Kutscherousky v. West, 12 Vet. App.
369 (1999).
This appeal must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).